Case T-3/09: Action brought on 2 January 2009 — Italy v Commission
Date: 2009-01-02
Institutions: Court of First Instance
Subjects: European Commission, Italy, State aid, action for failure to fulfil an obligation, control of State aid, exchange of information, shipbuilding

7.3.2009

EN

Official Journal of the European Union

C 55/45

regulation,
initially set for 31 March 2004, was subsequently
postponed for one year, thus allowing Community shipyards
until 31 March 2005 (the new expiry date of the regulation) to
conclude further contracts for building certain types of cargo
vessel. In support of those contracts, the regulation provides for
aid of up to 6 % of the contract value. The applicant is party to
five contracts for the construction of chemical vessels.

Action brought on 24 December 2008 — Kerma v OHIM
(BIOPIETRA)

(Case T-586/08)

(2009/C 55/80)

Language in which the application was lodged: Italian

the additional

In order to finance all of the contracts during the period from
2002 to 2005,
Italy notified two financing packages of
EUR 10 million each. The Commission authorised the first by
decision of 19 May 2004 but refused, by the contested decision,
to authorise the second financing package. The Commission
maintains that
financing constitutes ‘new aid’
within the meaning of Article 4 of Commission Regulation (EC)
No 794/2004 of 21 April 2004 (OJ 2004 L 140, p. 1) in that it
the
represents more than 20 % of
scheme. The Commission further argues that
the additional
financing is incompatible with the common market in that the
notification was made after 31 March 2005, the date on which
Regulation No 1177/2002 expired.

the original budget of

to prepare the financing for

The applicant submits that it was not possible for the Italian
Government
the contracts by
in a position to have
31 March 2005, since it was not
knowledge of all the contracts concerned: that being the last day
of application of the regulation, the undertakings had the right
to conclude contracts up to and on that day.

The applicant accordingly puts forward the following pleas in
law in support of its action to contest the decision, in particu-
lar:

— infringement of Regulation No 1177/2002 in the light of
in relation to
the

legislature

aims of

the
specific
Article 87(3)(e) EC;

— infringement of Article 4(2)(a) of Commission Regulation
financing of

No 794/2004 in so far as the additional
EUR 10 million has been categorised as ‘new aid’;

— irrelevance of the recommendation of 20 June 2005 of the
WTO Dispute Settlement Body in respect of the shipbuilding
contracts
Regulation
concluded
No 1177/2002;

lawfully

under

Parties

Applicant: Kerma SpA (Puegnago sul Garda, Italy) (represented
by A. Manzoni, lawyer)

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Form of order sought

— declare that

the trade mark BIOPIETRO conforms with
Article 4 of the Trade Mark Regulation and is not devoid of
any
of
Article 7(1)(b) of that regulation;

character within

the meaning

distinctive

— order OHIM to pay the costs in the event of its being unsuc-

cessful.

Pleas in law and main arguments

Community trade mark concerned: Word mark ‘BIOPIETRA’ (appli-
cation for registration No 5.658.893), for goods in Class 19.

Decision of the Examiner: Rejection of the application for registra-
tion.

Decision of the Board of Appeal: Rejection of the appeal.

in law:

Pleas
application of
Article 7(1)(b) of Regulation (EC) No 40/94 on the Community
trade mark.

and incorrect

Infringement

Action brought on 2 January 2009 — Italy v Commission

— failure to state reasons to substantiate the allegation that
there is no legal basis for authorising the additional finan-
cing;

— breach of the principles of good administration, the right to
a fair hearing, the rights of the defence, equal treatment,
subsidiarity and proportionality.

Parties

(Case T-3/09)

(2009/C 55/81)

Language of the case: Italian

Applicant: Italian Republic (represented by: P. Gentili, avvocato
dello Stato)

Defendant: Commission of the European Communities

C 55/46

EN

Official Journal of the European Union

7.3.2009

Form of order sought

— Annul the Commission Decision of 21 October 2008 on
State aid C 20/2008 (ex N 62/2008) which Italy is planning
to implement through a modification of scheme N 59/2004
concerning a temporary defensive mechanism to ship-
building, registered as number C(2008)6015 final, notified
to the Italian Republic on 22 October 2008 by note of
22 October 2008 No SG-Greffe (2008) D/206436.

Pleas in law and main arguments

The decision contested in the present case is the same as that
contested in Case T-584/08 Cantiere Navale De Poli v Commission.

The pleas in law and main arguments are similar to those put
forward in that case.

or

sign

Mark
‘UniSECTOR’,
in Classes 35 and 36.

cited

opposition: German word marks
‘UniDynamicFonds’ and ‘UniGarant’, for services

in

Decision of the Opposition Division: Opposition upheld in respect
of the services in Class 36.

Decision of the Board of Appeal: Appeal dismissed.

Pleas in law: Misapplication of Article 8(1)(b) of Regulation (EC)
No 40/94 on the Community trade mark. The applicant argues
that the contested decision did not take account of the powers
of perception of the public at which the services covered are
directed or of the non-existent or minimal distinctiveness of the
prefix ‘Uni’.

Action brought on 5 January 2009 — UniCredit v OHIM
— Union Investment Privatfonds (UniCredit)

(Case T-4/09)

(2009/C 55/82)

Appeal brought on 15 January 2009 by Luigi Marcuccio
against the order of the Civil Service Tribunal delivered on
F-133/06 Marcuccio v
4 November 2008 in Case

Commission

(Case T-9/09 P)

(2009/C 55/83)

Language in which the application was lodged: Italian

Language of the case: Italian

Parties

Parties

Applicant: UniCredit SpA (Rome,
Floridia, lawyer, and R. Floridia, lawyer)

Italy)

(represented by: G.

Appellant: Luigi Marcuccio (Tricase,
Cipressa, lawyer)

Italy)

(represented by G.

Defendant: Office for Harmonisation in the Internal Market
(Trade Marks and Designs)

Other party to the proceedings: Commission of
Communities

the European

Other party to the proceedings before the Board of Appeal of OHIM:
Union Investment Privatfonds GmbH (Frankfurt am Main,
Germany)

Form of order sought

— Annul the decision of the Second Board of Appeal of OHIM
delivered on 3 November 2008 in Case R 1449/2006-2,
relating to opposition proceedings No B 699.746.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Multi-coloured figurative mark
‘1 UniCredit’ (the number one being 45° inclined to the right
and impressed on the spherical
logo) (registration application
No 2.911.105), for goods and services in Classes 9, 16, 35, 36,
38, 39, 41 and 42.

Form of order sought by the appellant

— In every case

(A.1) set aside in its entirety and without exception the

order under appeal;

(A.2) declare the action at first instance to be admissible in

full.

— As a primary remedy:

(B.1) uphold in their entirety and without exception the
appellant's pleas in law set out in the application at
first instance;

(B.2) order

the respondent

to pay the appellant's costs
relating to this appeal and to the proceedings at first
instance;

— or, in the alternative:

Proprietor of the mark or sign cited in the opposition proceedings:
Union Investment Privatfonds GmbH.

(B.3) refer the case back to the Civil Service Tribunal, sitting

in a different formation, for a fresh decision.